SUPREME COURT OF CANADA

Transcription

1 SUPREME COURT OF CANADA (On Appeal from the Court of Appeal of Manitoba) BETWEEN: YVON DUMONT, ROY CHARTRAND, RON ERICKSON, CLAIRE RIDDLE, BILLYJO DE LA RONDE, JACK FLEMING, JACK MCPHERSON, DON ROULETTER, EDGAR BRUCE JR., FREDA LUNDMARK, MILES ALLARIE, CELIA KLASSEN, ALMA BELHUMEUR, STAN SUIBOCHE, JEANNE PERRAULT, MARIE BANKS DUCHARME, EARL HENDERSON, MANITOBA METIS FEDERATION INC., suing on their behalf and on behalf of all other descendants of Metis persons entitled to land and other rights under sections 31 and 32 of the Manitoba Act, 1870, and NATIVE COUNCIL OF CANADA INC. APPELLANTS (Plaintiffs) AND: ATTORNEY GENERAL OF CANADA RESPONDENT (Defendant) APPELLANTS' FACTUM Thomas R. Berger Barrister & Solicitor Suite 300, 171 Water Street Vancouver, B.C. V6B 1A7 Solicitor for the Appellants except Native Council of Canada Burke-Robertson Barrister & Solicitor 70 Gloucester Street Ottawa, Ont. K2P 0A2 Ottawa Agents for the Solicitors for the Appellants SAVINO & COMPANY Barristers & Solicitors # Portage Avenue Winnipeg, Manitoba R3C 2C1 Attorney General of Canada Department of Justice

2 237 Wellington Street Ottawa, Ontario Respondent Attorney General of Manitoba Defendant Ottawa, Ont. K1P 6L7 SOLOWAY, WRIGHT Barristers & Solicitors 99 Metcalfe Street Ottawa Agents for the Defendant I N D E X APPELLANT'S FACTUM Page PART I - STATEMENT OF FACTS 1 PART II - POINTS IN ISSUE 3 PART III - ARGUMENT 4 PART IV - ORDER REQUESTED 28 LIST OF AUTHORITIES 29 APPENDICES: "A" - Manitoba Act, 1870, s.31 and s "B" - Constitutional Act, "C" - Constitutional Act, 1982, s PART I STATEMENT OF FACTS

3 1. This being a case arising out of a motion to strike, the facts are set out in the Appellant's Further Amended Statement of Claim filed in the Manitoba Court of Queen's Bench. Case, p The Attorney General of Canada brought a motion to strike out the the Appellant's case. The Province of Manitoba did not join in the motion to strike. Barkman, J., in the Manitoba Queen's Bench, dismissed the motion. Reasons of Bartmen, J., Case p The Manitoba Court of Appeal allowed the Attorney General of Canada's appeal and struck out Appellant's action. 4. Twaddle, J.A. writing for the majority of the Manitoba Court of Appeal, accepted the law as stated by the Appellants on motions to strike, standing, and justiciability, disagreeing only as to the potential unity of the declaration sought. Reasons of Twaddle, J.A., Case, p Leave to Appeal was granted by this Court on June 8th, Case, p. 49 PART II ISSUES Whether the Manitoba Court of Appeal was correct in holding that the declaration sought would have no practical utility. PART III ARGUMENT A. THE METIS AND THE MANITOBA ACT 1. The Metis are one of the aboriginal peoples of Canada. Their history is embedded in the history of Manitoba. It is acknowledged that today the Metis are an aboriginal people without a land base: Twaddle, J.A., Reasons, Case, p.83, 1.40 to p. 84, 1.1. One of the objects of the Manitoba Act was to provide the Metis with a land base. The question of whether it was lost by recklessness on part of the Metis or as a result of unconstitutional measures enacted by Canada and Manitoba is of the first importance. The federal government has agreed to enter into negotiations with the Metis with respect to their claims for a land base: Further Amended Statement of Claim, para 7. Case, p.10, 1.46 to p The Metis are suing for a declaration that Canada and Manitoba passed unconstitutional measures to deny them their land base: Further Amended Statement of

4 Claim, para. 8 to para.14, p.11, 1.11 to p.19, Such a declaration will be of immense and obvious consequence in the negotiations. 2. The case takes us back to 1870, the crossroads of Canada's history. Promises were made by Canada to the Roman Catholics, the French and the Metis; these promises are entrenched in the Manitoba Act, All three of these groups have at one time or another sought to vindicate their rights under the Manitoba Act in the courts of law. Indeed, in 1870 the three were to a great extent the same group of people, though they are today distinct. 3. The issues relating to the rights of the Roman Catholics in Manitoba were litigated at the turn of the century: Barrett v. City of Winnipeg (1892) 19 S.C.R. 374 [1982] A.C. (P.C.) Brophy v. A.G. Manitoba (1893) 22 S.C.R. 577; [1895] A.C. 202 (P.C.) 4. The rights of Francophones in Manitoba have been litigated more recently in the 1970's and 1980's : Forest v. A.G. Manitoba [1979] 2 S.C.R. 1032; (1980) 101 D.L.R. (3d) 385 Re: Language Rights, [1985] 1 S.C.R. 721, (1985) 9 D.L.R. (4th) Now it is the turn of the Metis. It would be ironic if the Metis, who established the Provisional Government of which negotiated the terms of the Manitoba Act with Canada, and who constituted at the time 80% of the population of the Red River Settlement, were to be the only group denied the opportunity for a ruling on the measures taken to undermine their rights under the Manitoba Act. 6. Section 32 of the Manitoba Act dealt with all of the inhabitants of the Red River Settlement claiming river lots, including Metis. Section 31, on the other hand, was enacted specifically for the benefit of the Metis "families". To this end 1,400,000 acres were to be allocated to the children of "the half-breeds heads of families." The intent of the Metis was to assemble this land into Metis townships. This was to be the Metis Reserve. B. THE METIS ALLEGE THAT CANADA AND MANITOBA UNCONSTITUTIONALLY DEPRIVED THE METIS AND THEIR FAMILIES OF THE BENEFIT OF THE MANITOBA ACT

5 7. The measures enacted by Canada and the province of Manitoba in the 1870's and 1880's with respect to land did not implement the intent of the Manitoba Act but rather undermined the rights of the Metis. The Appellants have brought this action to obtain a declaration that these measure were unconstitutional. 8. The Supreme Court of Canada has ruled that compromises made in the pre- Confederation era, which are enshired in the Constitution Acts, must be upheld: Re Education Act, [1987] 1 S.C.R. 1148, Wilson, J., p Re Language Rights, supra. 9. In the case at bar the Metis seek a declaration that certain legislation and orders in council passed in the 1870s and 1880s by Canada and Manitoba were unconstitutional. In both Attorney General of Manitoba v. Forest, (supra), and Re Language Rights, supra, this Court held that the Constitution Act, 1871, Section 6, does not allow the Province to amend the Manitoba Act except in relation to electors, elections, and the composition of the Legislative Assembly. The prohibition against Parliament amending the Act is absolute insofar as the Act relates to the province of Manitoba. Parliament can only amend Section 35 and 36, which do not related to Manitoba. 10. The Appellants say that the measures passed by Parliament and the Province altered the Manitoba Act. The Appellants say that the purpose and effect of the impugned measures was to deny the Metis land rights promised to them in the Manitoba Act. Furthermore, the Appellants say that the guarantees of the Manitoba Act are akin to Charter guarantees; they stand outside the division of powers. If the effect of legislation is to infringe those rights, the legislation is unconstitutional. 11. This Court has held that where the effect of governmental action is to breach a Charter right, it is of no force and effect: The Queen v. Big M. Drug Mart [1985] 1 S.C.R. 295, Dickson, J. at p.331 et seq and see Wilson, J. at p Both Mr. Justice Dickson (as he then was) and Madame Justice Wilson held that even if the purpose of legislation is not to violate a Charter right, if that is nevertheless its effect, then it will be struck down as violating the Charter. This reasoning applies to the case at bar. 12. Indeed, the Appellants will show that the federal and provincial measures were interlocking. The Archbishop's protest [Archbishop Tache] of 1877 discouraged Mills temporarily, but one year later the government achieved the desired end of immediate dissolution of the reserves by other means, and without significant opposition from anyone in Manitoba. On July 4, 1878, the Department of the Interior gained authority by Order in Council "for the issue forthwith of Patents to all claimants of Half-breed lands, irrespective of age".

6 Suddenly children as young as eight years became the legal owners of 240-acre parcels of section land, became responsible for its taxation, and were unprotected by legislation - federal or provincial - concerning their "Infant Estates." In about eighty percent of the cases, the land passed to new owners the moment the patent arrived in Winnipeg. D.N. Sprague, Canada and the Metis, , Wilfred Laurier University Press, 1988 p. 124 The overriding consideration stated by the Chief Justice of the Manitoba Court of Queen's Bench, E.B. Wood, was that the "half breed reserves, like other reserves of every kind... are a curse to the country and should be distributed without delay." Wood profited personally in the distribution, as did most of the other members of the legal profession of Manitoba. No one voiced any squeamishness about the irregularities in the transfers of "half breed lands." According to one informed lawyer, "It was the opinion of nine out of ten of the profession that it was an improvident grant to the half breeds - in the first place - that it would bring them more harm than good - and that the sooner the whole of these lands was settled the better." (Emphasis added) D.N. Sprague, Canada and the Metis, , p. 125 The account of the fate of the Metis lands set out in Canada and the Metis, is documented in the public archives in Ottawa and in Manitoba In 1881 the Province held an inquiry into the alleged abused surrounding the traffic in the "infant lands", that is, the land provided for the "Half-Breed" people by s. 31 of the Manitoba Act. In his testimony, William Leggo, the Master in Chancery, stated in relation to the alienation of the Lands of the Metis children: I never suspected for a moment that a system which turned out to be so vicious could possibly exist in any civilized country. Infant Land Inquiry, 1881, (Commission to Investigate the Administration of Justice in Manitoba), Exhibit "A". 13. The impugned legislation, both federal and provincial, was in effect a series of amendments to the Manitoba Act. 14. The Appellants also say that the provincial legislation and orders in council enacted in the 1970s and 1880s trenched on federal power under the Constitution Act, 1867, S.91(24), "Indians and Lands Reserved for Indians." 15. Twaddle, J.A., writing for the majority in the court below, said, en passant, Case, p.75, , that the impugned legislation did not appear to be unconstitutional. However, the Appellants say that the issue of constitutionality was not before the court; what was before the court was a motion to strike. The whole question was whether the Appellants should have the opportunity of going to trial on the issue of constitutionality. Furthermore, Twaddle, J.A. did not consider the analogy of the Manitoba Act to the

7 Charter. Nor did he consider whether the provincial legislation trenched on the Constitution Act, S.91(24). It was premature for Twaddle, J.A. to offer an opinion on the constitutional issue. C. THE TEST TO BE APPLIED ON A MOTION TO STRIKE 1. The facts pleaded must be taken as proved. A.G. Canada v. Inuit Tapirisat of Canada [1980] 2 S.C.R. 735; (1980) 115 D.L.R. (3rd) 1 at p The court should grant a motion to strike a Statement of Claim only in cases that are plain and obvious where the case is beyond doubt: Operation Dismatle v. The Queen [1985] 1 S.C.R. 441, per Dickson, J. at p.486 D. STANDING 1. The Manitoba Court of Appeal did not rule that the Appellants lack standing. It could hardly have done so. If any person or persons have the right to bring this action, it is the Appellants. 2. In relation to the constitutional validity of the legislation passed by Canada and Manitoba in the 1870's and 1880's, the plaintiff Manitoba Metis Federation Inc (MMF) and other plaintiffs are not "busybodies". They have, at the very least, the standing of the Plaintiffs in the following cases: Thorson v. The Queen [1975] 1 S.C.R. 138; [1974] 43 D.L.R. (3d) 1; McNeil v. Nova Scotia Board of Censors [1976] 2 S.C.R. 265; (1975) 55 D.L.R. (3d) 632; Borowski v. The Queen [1981] 2 S.C.R. 575; (1981) 130 D.L.R. (3d) 588; Finlay v. A.G. Manitoba [1986] 2 S.C.R. 607; 33 D.L.R. (4th) The Appellants are precisely the persons who, as individuals, families, and as a people, have standing to challenge the constitutional validity of the impugned federal and provincial statutes and order-in-council. a. The Appellants say that they have the right, as the individual descendants of the persons described in Sections 31 and 32 of the Manitoba Act, to seek a declaration that the impugned federal and provincial statutes and orders-in-council are invalid. b. The Appellants are members of the "families" referred to in Section 31 of the Manitoba Act, and for those whose benefits the land was to be allotted under that section.

8 c. They have the right, as the Metis people, described in S.35 of the Constitution Act, 1982, to seek a declaration of unconstitutionality regarding the measures which violated those provisions of Section 31 and 32 of the Manitoba Act intended for their benefit. E. JUSTICIABILITY 1. The courts have held that a declaration may be granted even if it will have no legal consequences. 2. Sarna has summed up the law in The Law of Declaratory Judgments, 2nd ed., 1988, at p.24-25: The courts have on occasion assumed jurisdiction to make a declaration which is devoid of legal effect. Judgments have issued confirming that a labour dismissal or demotion was wrongfully effected even though there was no possibility of reinstatement, and that an administrative decision was rendered without regard to principles of natural justice even though the cancellation of the decision would not restore the status quo ante. While the applicant may have no real economic or patrimonial stake in obtaining the judgment, judicial sympathy has been forthcoming: especially where relief might effectively remove a slur upon the applicant's character, provide corrective or practical guidance to administrative officials, lead to a possible practical result, or simply declare a breach of law for the intrinsic social good. (Emphasis added). 3. Twaddle, J.A. conceded, at p.12, that the court may grant a declaration in aid of an extra-judicial claim, citing the case relied on by the Appellants: Merricks v. Nott-Bower [1964] 1 All E.R. 717; Landreville v. The Queen [1974] 41 D.L.R. (3d) 574 (F.C.T.D.); and Kelso v. The Queen [1981] 1 S.C.R. 199, (1981) 120 D.L.R. (3d) In Kelso the Supreme Court of Canada granted the declaration that the federal government had acted illegally even though the declaration could have no practical effect: See Dickson, J. speaking for the court, at page 207, where he said: It is quite correct to state that the Court cannot actually appoint Mr. Kelso to the Public Service. The Administration act of appointment must be performed by the Commission. But the Court is entitled to "declare" the respective legal rights of the appellant and respondent. The Public Service Commission is not above the law of the land. If it breaches a contract, or acts contrary to statute, the Courts are entitled to so declare.

9 5. Twaddle, J.A. after referring to the case cited by the Appellants, including Kelso, summed them up, at Case, p : Although the court could not provide a legal remedy in any of these three cases, it could decide an issue the resolution of which was essential to the settlement of an extra-judicial claim. The settlement of the extra-judicial claim would thus be promoted by the court deciding the entitlement of the plaintiff or the plaintiffs to the declaration sought. 6. Although he acknowledged that the case at bar is justiciable, Twaddle, J.A. appeared to hold the view it ought not to be. He said in Case, p.79, : What the court is being asked to consider in this case is the constitutional validity of spent legislation which does not affect anyone's current rights. The rights affected by the impugned legislation were the statutory rights of individuals who are now deceased. These rights are not being pursued individually by the legal representatives of the persons whose rights they were, but generally by descendants whose degree of relationship is not even stated. 7. Twaddle, J.A. insisted at Case, p. 79, to p.80, 1.30, that the case be considered merely as one where the Metis seek to vindicate the rights of their forebears long since dead. 8. Twaddle, J.A. distinguished Attorney General of Manitoba v. Forest on the ground that French language rights were conferred by the Manitoba Act "on the public generally. They were conferred not only on persons then alive, but also on all future generations." Case p. 79, Twaddle, J.A. ignored the argument that these rights can be vindicated today by the Metis considered as a people or as the families for whose benefit S.31 was enacted. The Appellants say that they should at least have the right to make that argument at trial. 10. Mr. Justice Twaddle held that the Metis had no community of interest in the land, then or now. The fact is that the Manitoba Act expressly stated that the intention was to benefit the Metis "families" 11. "Family" is a word with wide meaning. In S.31 it must have meant something more than merely the children who are separately referred to in that section. The definition of "family" in the Shorter O.E.D. includes the following: Those descended or claiming descent from a common ancestor; a house, kindred, lineage ME.; a race; a people or group of peoples 1583

10 12. Section 31 of the Manitoba Act provided that 1.4 million acres were to be appropriated, "for the benefit of the families of the half-breed residents". The plaintiffs are members of the families referred to; Section 31 was enacted for their benefit. The specific mechanism chosen to benefit the "families" was granting of land to the "children", land or the value of which would be transmitted to their progeny, and which would thus benefit the "families" in perpetuity. 13. The reason why land was protected for future generations was because of the extinguishment, pursuant to S.31 of the Manitoba Act, of the aboriginal or "Indian" title to the lands of the Province. In the same way as aboriginal title continues to benefit descendants of the original owners of the land, land granted in return for extinguishment is also intended to protect the interests of future generations. This has always been the pattern in Canada whether the land in question is reserved under a treaty, set aside under the Indian Act, or granted in severalty (Treaty 8, signed with Indian tribes in 1899, provides for allotment of land in severalty to individual Indians). The mode of granting does not alter the fact that the grants were intended to be for the benefit of future generations. The Manitoba Act was an adaptation, to the special situation of the Metis, of the usual arrangements made with the aboriginal people of Canada. 14. Indeed, the historical materials show that the Metis wished to select their allotments so that their land could be assembled into townships. Hence the references to a "Metis Reserve". No one thought that this would be the eqvalent of an Indian reserve held by Her Majesty for the use and benefit of an Indian band as a community. It was, however, understood that the Metis were an aboriginal people, that their right to land was derived from their Indian ancestry and that, though they would hold their allotments as individual owners, the express intention of the Manitoba Act was that it should be for the benefit of the Metis "families", i.e. the Metis people. Canada and the Metis, , supra, p.99, The principle expressed in Nowegijick v. The Queen [1983] S.C.R. 29, by Dickson J. at p.36, that "treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians" applies equally to the Metis (and the Inuit): Section 35(2), Constitution Act, F. THE UTILITY OF THE DECLARATION SOUGHT BY THE METIS 1. The Manitoba Court of Appeal did not dispute any of the above propositions. It struck out the action solely on the basis that a declaration would be of no real advantage to the Appellants. 2. Twaddle, J.A. acknowledged that a declaration can be granted in aid of an extrajudicial claim, but held that in the case at bar a decision on the constitutional validity of the impugned legislation would not be useful to the Metis in negotiating a political

11 settlement of the Metis land claim, in that it would not promote such a settlement " in any real sense" Case, p.84, No reason was given for this conclusion. 3. The need to negotiate a land base for the Metis was recognized by Prime Minister Mulroney at the 1985 First Ministers Conference on Aboriginal Rights: Further Amended Statement of Claim, para. 7, Case, p to p.12, The Appellants say that the declaration they seek will promote a settlement of their claim. And they have a claim they wish to see advanced. Why else were they included as a people under the Constitution Act, S.35(2)? Why should they not wish to see their claim culminate in a land claim agreement to be enshired under the Constitution Act, S.35(3)? 5. The declaration sought in the present case will bear directly on the meaning and interpretation of sections 25 and 35 of the Constitution Act, Section 35 of the Constitution Act, 1982 not only protects the rights of the aboriginal peoples of Canada, it also by subsection (3) provides a method for the resolution of the outstanding issues between the governments of Canada and the aboriginal peoples. A ruling at trial will shape the course of the negotiations of the land claims agreement with the Metis which will be protected by S.35 (3). 7. It is unreasonable to day that the declaration would not be useful in the negotiations. Mr Justice Twaddle referred to the fact that the Metis are an aboriginal people without a land base. Although the Manitoba Act, 1870 provided that they should receive a land base, the fact is by 1885 only 15% of them still held land pursuant to the allotments made under the Manitoba Act: Further Amended Statement of Claim, para 13, p.19, Was this owing to recklessness on their part? Or was it, as the Appellants allege, the result of the series of unconstitutional measures enacted by the Parliament of Canada and by the Legislature of Manitoba during the 1870s and 1880s? If indeed it was owing to the fact that unconstitutional measures were passed by the Legislature of Manitoba and by the Parliament of Canada, then a great injustice was done the Metis. This is of the first importance in any negotiations that may take place today. 8. In Jaspar Park Chamber of Commerce v. Governor General 2 F.C. 98, Heald, J., writing for the Federal Court of Appeal, applying Kelso, set out at p.121 the test that a plaintiff has to meet a motion to strike: I am far from being persuaded that the declaration of invalidity sought by these appellants could not possibly have some practical effect in so far as they are concerned. in my view, this is a case where it is clearly arguable that if the declaration sought is made, it might be possibly produce a practical result. The matter is not beyond doubt and should therefore be allowed to proceed. 9. It is now commonplace to acknowledge interaction between litigation and political decision-making, whether by a reference, such as the Patriation Reference, [1981] 1

12 S.C.R. 753, or by ordinary litigation such as MacMillan Bloedel Ltd. v. Mullin et al. [1985] W.W.R. 577, 61 B.C.L.R. 145 (B.C.C.A.). per Macfarlane, J.A. at p.173 (B.C.L.R.). 10. In Canada we have a long tradition of the courts being asked to answer questions that are linked to political disputes. It is entrenched in the Canadian tradition, and has been shown to be of enormous utility, in promoting the settlement of extra-judicial disputes. Examples include: Calder v. A.G.B.C.. [1973] S.C.R. 313 Patriation Reference, supra 11. In MacMillan Bloedel Ltd. v. Mullin, supra per Macfarlane, J.A. said at p.173 (B.C.L.R.) The Constitution Act, 1982 recognized and affirmed "the existing aboriginal land and treaty rights of the aboriginal peoples of Canada". The federal government has agreed to negotiate some claims. Other claims are being advanced. Another action has been started by other Indian bands concerning lands in the northwestern part of the province. It is significant that no injunction has been sought in that action. I think it fair to say that, in the end, the public anticipates that the claim will be resolved by negotiation and by settlement. This judicial proceeding is but a small part of the whole of a process which will ultimately find its solution in a reasonable exchange between governments and the Indian nations. (Emphasis added) 12 In Operation Dismantel, supra, Dickson, J. said, at p.494, "I have no doubt that disputes of a political or foreign policy nature may be properly cognizable by the courts." And see Wilson, J. in Dismantle at pp In such cases historical materials are often referred to. G. USE OF HISTORICAL MATERIALS 1. In the case at bar, O'Sullivan, J.A. dissenting, recognized the necessity for the law to accommodate claims such as that made at bar. Our common law comes from England, where claims such as those of aboriginal peoples did not arise. If the common law is not to be a strait-jacket, suitable only to situations that can be assimilated to its country of origin, unable to accommodate the litigation that emerges in the countries where it has spread, each with a different history and culture, claims such as that of the Metis must be capable of being litigated. And they are. 2. It will be necessary to establish the matrix of fact, or the factual background against which the constitutionality of the measures enacted in the 1870s and 1880s is to be considered. There is a wealth of documentary and archival material including: D.N. Sprague, "Government Lawlessness in the Administration of Manitoba Land Claims, ", Manitoba Law Journal (1980), Vol. 10 No. 4, p.415;

13 D.N. Sprague, Canada and the Metis, , supra. Gerhard Ens, "Metis Lands in Manitoba", (1983) 5 Manitoba History 2 ; Infants Lands Inquiry, (Commission to Investigate the Administration of Justice in Manitoba), The Appellants have retained Prof. Sprague of the University of Manitoba; the Attorney General of Canada has retained Prof. Flanagan of the University of Calgary and Prof. P.B. Waite of Dalhousie H. OTHER MATTERS 1. The declaration bears on the Federal Court action commenced by the Metis The Metis in the case at bar seek a declaration that the legislation, both federal and provincial, is in violation of the Manitoba Act and therefore unconstitutional. In a concurrent action in the Federal Court, Trial Division, they seek damages against the federal government. See Statement of Claim filed in the Federal Court, Trial Division, Case, p.27. In the Federal Court, the Appellants have pleaded breach of trust and breach of fiduciary obligation. They say the at the federal government's breach consisted, inter alia, in failing either to challenge the constitutionality of the provincial legislation or to disallow it. See Plaintiffs' Statement of Claim in the Federal Court, para. 17, Case p. 42, Two actions are necessary because the provincial Crown cannot be impleaded in the Federal Court. This judicial division of labour requires that there be proceedings in both courts; the case at bar should proceed as against both defendants because it bears on the Federal Court proceedings; the provisions under consideration in the two cases are virtually identical. 2. There is already a "lis" Both the federal government and the province have filed Defences pleading to the merits: see Attorney-General of Canada's Statement of Defence, para, 8, Case, p.22, , and Attorney General of Manitoba's Statement of Defence, para. 9, Case, p.25, The Appellants have thus secured two proper contradictors. 3. The Province has not joined in the motion to strike. The province has not sought to have action struck. The action will therefore proceed in any event. It is possible to adjudicate the constitutionality of the provincial measures without adjudicating the constitutionality of the federal measures. In these circumstances the motion by the federal government should not be granted. It will not put an end to the

14 action, it will merely serve as an indirect means of having the federal government removed as a party. PART IV ORDER REQUESTED The Appellants request that this Honourable Court allow the appeal and reinstate the action brought by the Appellants in the Manitoba Court of Queen's Bench. All of which is Respectfully Submitted Dated at Vancouver, B.C. this 11th day of October, 1989 Thomas R. Berger Counsel for the Appellants LIST OF AUTHORITIES Page 1. A.G. Canada v. Inuit Tapirisat of Canada [1980] 2 S.C.R. 735; (1980) 115 D.L.R. (3rd) Barrett v. City of Winnipeg (1892) 19 S.C.R. 374 [1982] A.C. 445 (P.C.) 5 3. Borowski v. The Queen [1981] 2 S.C.R. 575; (1981) 130 D.L.R. (3d) Brophy v. A.G. Manitoba (1883) 22 S.C.R. 577; [1895] A.C. 202 (P.C.) Calder v. A.G.B.C. [1973] S.C.R Gerhard Ens, "Metis Lands in Manitoba" (1983) 5 Manitoba History Finlay v. A.G. Manitoba [1986] 2 S.C.R. 607; 33 D.L.R. (4th) Forest v. A.G. Manitoba (1979) 2 S.C.R. 1032; (1980) 101 D.L.R. (3d) 385 5, 7, 16

15 9. Infants Land Inquiry (Commission to Investigate the Administration of Justice In Manitoba Jasper Park Chamber of Commerce v. Governor General [1983] 2 F.C Kelso v. The Queen [1981] 1 S.C.R. 199, (1981) 120 D.L.R. (3d) Landreville v. The Queen [1974] 41 D.L.R. (3d) 574 (F.C.T.D.) MacMillan Bloedel Ltd. v. Mullin et al (1985) 3 W.W.R. 577, 61 B.C.L.R. 145 (B.C.C.A.) McNeil v. Nova Scotia Board of Censors [1976] 2 S.C.R. 265; (1975) 55 D.L.R. (3d) Merricks v. Nott-Bower [1964] 1 All E.R Noweqijick v. The Queen [1983] S.C.R Operation Dismantle v. The Queen [1985] 1 S.C.R , Patriation Reference [1981] S.C.R Re Education Act, [1987] 1 S.C.R Re Language Rights, [1985] 1 S.C.R , D.N. Sprague, Canada and the Metis, , Wilfred Laurier University Press, , 10, 19, D.N. Sprague, "Government Lawlessness in the Administration of Manitoba Land Claims, ", Manitoba Law Journal (1980), Vol. 10, No. 4, p

16 23. The Law of Declaratory Judgments 2nd Edition The Queen v. Big M. Drug Mart [1985] 1 S.C.R Thorson v. The Queen [1975] 1 S.C.R. 138; [1974] 43 D.L.R. (3d) 1 12 This file was last modified: Wednesday, 08-Aug :30:17 CST